Prior Restraint Exam

When restraint is allowed, which is rarely, it:

1. must be very narrow 2. must be content neutral (not based on content alone) 3. cannot target a specific individual, group, speech, media 4. must be the only way to achieve the constitutional goal

Landmark Communications v. Virginia - 1978

A Landmark Communications newspaper, The Virginian Pilot, published an article regarding the Virginia Judicial Inquiry and Review Commission's investigation into a state judge. The article, which was accurate, violated a Virginia law that prohibited the release of information from Commission hearings. Landmark was indicted by a grand jury, had its motion to dismiss denied by the trial court, convicted without a jury trial and fined. The Supreme Court of Virginia affirmed Landmark's conviction. The Court ruled 7-0 reversing the Supreme Court of Virginia. Chief Justice Warren E. Burger authored the majority opinion. Speaking for six members of the Court, Burger recognized the need for confidentiality in the Commission's proceedings. However, the disclosure of information from the Commission hearing by the Pilot served a public interest consistent with New York Times v. Sullivan. Therefore, the state interest did not "justify encroaching on First Amendment guarantees" in the form of the criminal punishment. Justice Potter Stewart wrote an opinion concurring in the judgment.

Nebraska Press Association v. Stuart - 1976

A Nebraska state trial judge, presiding over a widely publicized murder trial, entered an order restraining members of the press from publishing or broadcasting accounts of confessions made by the accused to the police. The judge felt that this measure was necessary to guarantee a fair trial to the accused. The Court agreed with the trial judge that the murder case would generate "intense and pervasive pretrial publicity." However, the unanimous court held that the practical problems associated with implementing a prior restraint on the press in this case would not have served the accused's rights. Chief Justice Burger reasoned that"a whole community cannot be restrained from discussing a subject intimately affecting life within it."

Florida Star v. B.J.F. - 1989

A reporter for the Florida Star wrote and printed an article about Betty Jean Freedman's rape, including her full name. The reporter obtained all of his information, including the victim's name, from the police report. The police department did not restrict access to the pressroom or police reports, but there were several signs in the area instructing not to print victim's names. The newspaper also had a policy of not printing the full names of victims. After the article ran, Freedman and her family received several threatening phone calls, and Freedman sought mental counseling and police protection. Freedman sued, claiming emotional distress. The district court found Florida Star guilty of negligence under a Florida law that prohibits publishing the name of a victim of a sexual offense in any instrument of mass communication. The court awarded Freedman compensatory and punitive damages. The district court of appeal affirmed and the Supreme Court of Florida denied review. In a 6-3 decision, Justice Thurgood Marshall wrote the majority opinion reversing the lower court. The Supreme Court held that the civil damages imposed on Florida Star violated the First Amendment because the information was lawfully-obtained and truthful. The Court hinted that there may be a situation where a victim's privacy interest outweighed a newspaper's First Amendment rights. The Court also held that the Florida law prohibiting the printing of a victim's name was under-inclusive because it did not limit the spread of a victim's name through other means. Justice Antonin Scalia wrote a concurrence, stating that the Florida statute was invalid because it did not protect a state interest of the highest order. Justice Byron R. White wrote a dissent, expressing that the majority's decision departs from past precedent. Justice White also rejected the majority's assertion that the Florida law was under-inclusive. Chief Justice William H. Rehnquist and Justice Sandra Day O'Connor joined in the dissent.

Marketplace of Ideas

All information and opinions should be allowed to compete in a marketplace, with the best ideas chosen from among the many. The truth will rise to the top - but it might take a while.

Absolutist Theory

An absolute protection against censorship

Fundamental Concept 2

Any action that causes restraint requires "judicial review" called an "adversary hearing." The courts determine the legality of restraint, not the legislative or executive branches. ( Near v. Minnesota)

Thornhill v. Alabama - 1940

Byron Thornhill joined a picket line that was protesting against his former employer. Section 3448 of Alabama state law made it an offense to picket. Pursuant to the law, Thornhill was arrested and fined $100. Thornhill, a union president, was the only picketer to be arrested and tried under the law. In an 8-to-1 decision, the Court held that Section 3448 of the Alabama State Code was facially invalid. The Court held that labor relations were "not matters of mere local or private concern," and that free discussion concerning labor conditions and industrial disputes was "indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society." The Court found that no clear and present danger of destruction of life or property or of breach of the peace was inherent to labor picketing, and thus deserved First Amendment protection.

Fundamental Concept 4

Court rulings have expanded the definition of the press. (Lovell v. Griffin, Thornhill v. Alabama, Austin v. Keefe)

Schenck v. U.S. - 1919

Established the "Clear and Present Dander" balancing test Schenck distributed material encouraging men to defy the draft board.

New York Times v. U.S. (Pentagon Papers) - 1972

In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co. In its per curiam opinion the Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case. Justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified.

Near v. Minnesota - 1931

Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials, charging that they were implicated with gangsters. Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law that allowed such action against periodicals. The law provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined (stopped) from further committing or maintaining the nuisance. The Supreme Court held that the statute authorizing the injunction was unconstitutional as applied. History had shown that the protection against previous restraints was at the heart of the First Amendment. The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment. Thus the Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding.

Fundamental Concept 3

Licensing of speech and the press cannot occur. Even regulation that may not be actual licensing but achieves the same end as licensing is unacceptable. (Near v. Minnesota, Lovell v. Griffin, Thornhill v. Alabama, Bantam Books v. Rhode Island)

Fundamental Concept 1

Prior restraint a "heavy burden of proof" on the government that restraint is the ONLY way for government to achieve its intended goal and that is necessary to abridge First Amendment rights (preferred position theory, Meiklejohn, market place of ideas)

Fundamental Concept 5

Prior restraint does not allow for distinction between true and false. (Near v. Minnesota)

Meiklejohnian Theory

Public Speech - speech or press that advances self-governance and focuses on public policy, gets absolute protection Private Speech - speech or press that addresses anything other than governance and public policy, should not get absolute protection because it is not essential to self-governance

Fundamental Concept 6

Publication and distribution go hand-in-hand (Near v. Minnesota)

Fundamental Concept 7

Punishment after the fact is always preferred to prior restraint.

R.A.V. v. St. Paul - 1992

Several teenagers allegedly burned a crudely fashioned cross on a black family's lawn. The police charged one of the teens under a local bias-motivated criminal ordinance which prohibits the display of a symbol which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The trial court dismissed this charge. The state supreme court reversed. R.A.V. appealed to the U.S. Supreme Court. In a 9-to-0 vote, the justices held the ordinance invalid on its face because "it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses." The First Amendment prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed. Under the ordinance, for example, one could hold up a sign declaring all anti-semites are bastards but not that all Jews are bastards. Government has no authority "to license one side of a debate to fight freestyle, while requiring the other to follow the Marquis of Queensbury Rules."

Fundamental Concept 8

The "public right to know" is not an absolute factor for preventing prior restraint.

Snyder v. Phelps (Westboro Baptist Church) - 2011

The family of deceased Marine Lance Cpl. Matthew Snyder filed a lawsuit against members of the Westboro Baptist Church who picketed at his funeral. The family accused the church and its founders of defamation, invasion of privacy and the intentional infliction of emotional distress for displaying signs that said, "Thank God for dead soldiers" and "Fag troops" at Snyder's funeral. U.S. District Judge Richard Bennett awarded the family $5 million in damages, but the U.S. Court of Appeals for the Fourth Circuit held that the judgment violated the First Amendment's protections on religious expression. The church members' speech is protected, "notwithstanding the distasteful and repugnant nature of the words." The Supreme Court affirmed the lower court's decision in an opinion by Chief Justice John G. Roberts, Jr. The Court held that the First Amendment shields those who stage a protest at the funeral of a military service member from liability. Justice Stephen J. Breyer filed a concurring opinion in which he wrote that while he agreed with the majority's conclusion in the case, "I do not believe that our First Amendment analysis can stop at that point." Justice Samuel Alito filed a lone dissent, in which he argued: "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case."

Preferred Position Theory

When balancing conflicting rights, the First Amendment gets a "Preferred Position," meaning it starts out with the advantage of having greater weight than other rights.